DOB: American Trust Counsel - CD-CP

* * * * * * * * * * * * * * * * * * * * * * *

IN THE MATTER OF:

AMERICAN TRUST COUNSEL LLC
a/k/a AMERICAN TRUST
COUNSEL, P.A.

    ("Respondent")

* * * * * * * * * * * * * * * * * * * * * * *

*
*
*
*
*
*
*
*
*
*

ORDER TO CEASE AND DESIST

AND

ORDER IMPOSING CIVIL PENALTY


I.  PRELIMINARY STATEMENT

WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Sections 36a-671 to 36a-671e, inclusive, of the Connecticut General Statutes contained in Part II of Chapter 669 of the Connecticut General Statutes, “Debt Adjusters and Debt Negotiation”;
 
WHEREAS, the Commissioner, through the Consumer Credit Division of the Department of Banking (“Department”), conducted an investigation of the activities of Respondent, pursuant to the authority granted by Section 36a-17(a) of the Connecticut General Statutes, to determine if it had violated, was violating or was about to violate the provisions of the Connecticut General Statutes within the jurisdiction of the Commissioner;
 
WHEREAS, on June 25, 2013, the Commissioner, acting pursuant to Sections 36a-52(b), 36a-50(c), 36a-671a(b), 36a-52(a) and 36a-50(a) of the Connecticut General Statutes, issued a Temporary Order to Cease and Desist, Order to Make Restitution (“Order to Make Restitution”), Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty and Notice of Right to Hearing (collectively “Order and Notice”) against Respondent, which Order and Notice is incorporated herein by reference;
 
WHEREAS, on June 26, 2013, the Order and Notice was sent by certified mail, return receipt requested, to Respondent (Certified Mail Nos. 70123050000216929751 and 70123050000216929768); and to Respondent’s agent (Certified Mail No. 70121010000173170263);
 
WHEREAS, the Order and Notice provided Respondent with the opportunity for a hearing, and stated that if a hearing was not requested by Respondent within 14 days of Respondent’s receipt, the Order to Make Restitution shall remain in effect and become permanent against Respondent and the Commissioner would issue an order that Respondent cease and desist from violating Section 36a-671(b) of the Connecticut General Statutes, and may order a civil penalty in an amount not to exceed One Hundred Thousand Dollars ($100,000) per violation be imposed upon Respondent;
 
WHEREAS, on July 15, 2013, the Order and Notice sent to Respondent by Certified Mail No. 70123050000216929751 was returned to the Department marked “Return to Sender – Unable to Forward”; on July 25, 2013, the Order and Notice sent to Respondent by Certified Mail No. 70123050000216929768 was returned to the Department marked “Return to Sender – Attempted – Not Known – Unable to Forward”; and on July 30, 2013, the Order and Notice sent to Respondent’s agent by Certified Mail No. 70121010000173170263 was returned to the Department marked “Return to Sender – Insufficient Address – Unable to Forward”;
 
WHEREAS, Section 36a-52(a) of the Connecticut General Statutes provides, in pertinent part, that “[t]he notice shall be deemed received by the person on the earlier of the date of actual receipt, or seven days after mailing or sending”;
 
WHEREAS, Section 36a-50(a)(1) of the Connecticut General Statutes provides, in pertinent part, that “[t]he notice shall be deemed received by the person on the earlier of the date of actual receipt or seven days after mailing or sending”;
 
WHEREAS, Section 36a-50(c) of the Connecticut General Statutes provides, in pertinent part, that “[t]he order shall be deemed received by the person on the earlier of the date of actual receipt or seven days after mailing or sending”;
 
WHEREAS, Respondent failed to request a hearing within the prescribed time period;

WHEREAS, the Commissioner alleged in the Order and Notice, with respect to the activity described therein, that Respondent’s engaging in debt negotiation in this state without obtaining the required license constitutes a violation of Section 36a-671(b) of the Connecticut General Statutes.  Such violation forms the basis to issue an order to cease and desist pursuant to Sections 36a-671a(b) and 36a-52(a) of the Connecticut General Statutes, issue an order to make restitution pursuant to Sections 36a-671a(b) and 36a-50(c) of the Connecticut General Statutes, and impose a civil penalty pursuant to Sections 36a-671a(b) and 36a-50(a) of the Connecticut General Statutes;
 
WHEREAS, also in the Order and Notice, the Commissioner ordered, pursuant to Section 36a-50(c) of the Connecticut General Statutes that not later than thirty (30) days from the date the Order to Make Restitution becomes permanent, Respondent repay an identified Connecticut resident a specified amount plus interest, and repay any other Connecticut resident who entered into an agreement for debt negotiation services with Respondent on and after October 1, 2009, any fees paid by such resident plus interest, and provide evidence of such repayments to the Director of the Consumer Credit Division; 
 
WHEREAS, the Order to Make Restitution remains in effect and became permanent against Respondent on July 18, 2013;
 
WHEREAS, Section 36a-52(a) of the Connecticut General Statutes provides, in pertinent part, that “[i]f the person does not request a hearing within the time specified in the notice or fails to appear at the hearing, the commissioner shall issue an order to cease and desist against the person.  No such order shall be issued except in accordance with the provisions of chapter 54”;
 
WHEREAS, Section 36a-50(a)(2) of the Connecticut General Statutes provides, in pertinent part, that “[i]f such person does not request a hearing within the time specified in the notice or fails to appear at the hearing, the commissioner may, as the facts require, order that a civil penalty not exceeding one hundred thousand dollars per violation be imposed upon such person”;
 
WHEREAS, Section 36a-50(a)(3) of the Connecticut General Statutes provides that “[e]ach action undertaken by the commissioner under this subsection shall be in accordance with the provisions of chapter 54”;
 
AND WHEREAS, Section 36a-1-31(a) of the Regulations of Connecticut State Agencies provides, in pertinent part, that “[w]hen a party fails to request a hearing within the time specified in the notice, the allegations against the party may be deemed admitted.  Without further proceedings or notice to the party, the commissioner shall issue a final decision in accordance with section 4-180 of the Connecticut General Statutes and section 36a-1-52 of the Regulations of Connecticut State Agencies”.


II.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

1.
The Commissioner finds that the matters asserted, as set forth in paragraphs 1 through 5, inclusive, of Section II of the Order and Notice, shall constitute findings of fact within the meaning of Section 4-180(c) of the Connecticut General Statutes, and that the conclusions, as set forth in Section III of the Order and Notice, shall constitute conclusions of law within the meaning of Section 4-180(c) of the Connecticut General Statutes and Section 36a-1-52 of the Regulations of Connecticut State Agencies.
2.
The Commissioner finds that Respondent has engaged in acts or conduct which, pursuant to Sections 36a-671a(b) and 36a-52(a) of the Connecticut General Statutes, forms the basis to issue an order to cease and desist against Respondent, and, pursuant to Sections 36a-671a(b) and 36a-50(a) of the Connecticut General Statutes, forms the basis to impose a civil penalty upon Respondent.
3.
The Commissioner finds that the Notice was given in compliance with Section 36a-52(a), subsections (a) and (c) of Section 36a-50 and Section 4-177 of the Connecticut General Statutes.


III.  ORDER

Having read the record, I HEREBY ORDER, pursuant to Sections 36a-671a(b), 36a-52(a) and 36a-50(a) of the Connecticut General Statutes that:

1.
American Trust Counsel LLC a/k/a American Trust Counsel, P.A. CEASE AND DESIST from violating Section 36a-671(b) of the Connecticut General Statutes;
2.
A CIVIL PENALTY of One Hundred Thousand Dollars ($100,000) be imposed upon American Trust Counsel LLC a/k/a American Trust Counsel, P.A., to be remitted to the Department of Banking by cashier’s check, certified check or money order, made payable to “Treasurer, State of Connecticut”, no later than thirty (30) days from the date this Order is mailed; and
3.
This Order shall become effective when mailed.

Dated at Hartford, Connecticut
this 20th day of August 2013.             

 ________/s/_________
 Howard F. Pitkin
 Banking Commissioner

This Order was sent by certified mail,
return receipt requested, to
Respondent and Respondent’s agent
on August 21, 2013.


American Trust Counsel LLC                   Certified Mail No. 70020860000215459755
a/k/a American Trust Counsel, P.A.
Attention:  Thomas W. Austin, Registered Agent
918 Orange Isle
Ft. Lauderdale, Florida 33315

American Trust Counsel LLC                   Certified Mail No. 70020860000215459762
a/k/a American Trust Counsel, P.A.
4555 N.W. 103rd Avenue, Suite 105
Sunrise, Florida 33351

American Trust Counsel LLC                    Certified Mail No. 70020860000215459779
a/k/a American Trust Counsel, P.A.
2881 East Oakland Park Boulevard, Suite 215
Ft. Lauderdale, Florida 33306


 


Administrative Orders and Settlements